This blog takes an interest in issues associated with Freedom of Information (FOI) and privacy legislation in Australia. It also includes comment about open transparent and accountable government and related issues generally drawing on developments in Australia and overseas. Information contained on this site is general in nature and does not constitute legal
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Friday, September 28, 2012

The Senate Legal and Constitutional Affairs Legislation Committee report on the Privacy Amendment (Enhancing Privacy Protection) Bill 2012 recommends passage by the Senate subject to acceptance of twenty recommendations. Chris Merritt in The Australian today suggests the bill, already approved by the House of
Representatives, could now be subject to further change. Merritt lists some of the ongoing concerns about the proposed scheme among stakeholders. The Australian Privacy Foundation told the committee there are many ways in which the bill would significantly weaken privacy protection. But after four years....

Despite the fact there is a blank when it comes to Australian groups among the 200 organisational members of the founders, FOI Advocates, and on the map of Australia in the world map of RTKD activities 2012. And Australia is not in the list of members of the Open Government Partnership, one year old today, and now with 57 government members - but we live in hope.

On the last mentioned, Australian Information Commissioner Professor John McMillan told the Creating Open Government Conference in Sydney last month that Australian membership is still "under discussion"- what a marathon!

The development of a national framework for open government policy was an issue my office took up in an Issues Paper in 2010, Towards an Australian Government Information Policy. We plan to return to that theme in another paper in November this year to mark the second anniversary of the office.A related development mentioned earlier in this
conference by other speakers is the international Open Government
Partnership (OGP), which 57 countries have now joined. One of the
requirements of membership is that a country publish a national action
plan that contains concrete open government commitments and projects.
Expert external evaluation of a country's performance against the
commitments in the country plan is another requirement of OGP
membership. Impressive plans have already been published by, among
others, the United States, United Kingdom and Canadian governments.
The Australian Government has not yet announced whether it will join
the OGP, though the matter is under discussion.

(Update: not dancing in the street mind you, but the Office of the Queensland Information Commissioner acknowledges Right to Know Day, which also gets a mention in the Office of Australian Information Commissioner weekly email update :Today is Right to Know Day! Right to Know Day was created at an international meeting of information advocates in Bulgaria in 2002, with the goal of promoting the global movement of increasing access to information and awareness of Freedom of Information (FOI) worldwide. For more information visit the Freedom of Information Advocates Network website: http://www.foiadvocates.net/).

The Global Mail also has articles by Bernard Lagan about a 10 month saga to access documents from the immigration department. The GM complained, one of 27 complaints that led to an own motion investigation by Australian Information Commissioner Professor John McMillan into what the GM describes as "the closed-mouth chaos of a critical government department." The report was released by the OAIC yesterday.

Ernst & Young uncovered a culture of fear among
immigration officials when it came to releasing information to the
public. In their previously unreleased report to the department's
managers, Ernst & Young consultants wrote: "FOI staff report that
many Department of Immigration staff are not comfortable with the new
disclosure environment where there is a widespread fear of releasing
information and a failure to recognise that FOI is everyone's
responsibility." Ernst & Young urged Immigration's
chiefs to counter what they called a "fear of releasing information"
culture within the department, saying there was a lack of consistent
leadership for changing internal attitudes toward FOI.

Problems identified by the OAIC included undue deference to the minister's office, not enough staff, inadequate arrangements for
controlling delays, inadequate staff guidance, poor record keeping,
inadequate communication with people applying for information, and poor
engagement with the Information Commissioner's staff.

The report lists undertakings by the department to put in place changes which include instructing all Immigration
staff they had to meet FOI requests on time, that FOI performance be
included in the performance agreements of senior staff, that there be
more training for FOI staff and that the department improve its record
keeping.

And hopefully less waiting for a nod in the right direction from the minister's office.

Wednesday, September 26, 2012

Despite objections by the two companies involved, the NSW Administrative Decisions Tribunal (Nature Conservation Council of NSW v Department of Trade and Investment,
Regional Infrastructure and Services [2012] NSWADT 195) has ruled in favour of disclosure of information under the GIPA act concerning current wood
supply agreements with Forests NSW. The information included the sustainable yield, resource price and allocation of hardwood

In evidence a senior executive of one of the timber companies said he was not aware of any publicly available information of this kind. Evidence on behalf of the applicant from an economist and an environmental consultant cast doubt on this and on the claimed adverse effects of disclosure on business and commercial affairs. Judicial Member Montgomery balanced the considerations as follows:

197. I
consider that there is a strong public interest consideration favouring
disclosure of the redacted information in order to increasing (sic) the
financial accountability of the First Respondent. I agree with the
Applicant that there is a clear public interest in an agency that is
dealing with public assets being accountable for the manner in which it
contracts to sell those assets. This interest is strengthened by the
fact that the Agreements were entered under a system that did not
involve an open tender.

198. I
also consider that there is a strong public interest consideration
favouring disclosure of the redacted information in order to further
public policy development around the management of the publicly owned
hardwood forest estate in NSW.

199. I
also consider that there is a strong public interest consideration
favouring disclosure of the redacted information in order to encourage
community engagement with government about sustainability.

200. I
consider that there is a public interest consideration against
disclosure of the redacted information because there is some risk that
the Second and Third Respondents could be placed at a commercial
disadvantage in relation to other contractors or potential contractors
if the redacted material is disclosed.

201. I
consider that there is a public interest consideration against
disclosure of the redacted information because there is some risk that
the commercial value of some aspects of the redacted information could
be diminished if the redacted material were disclosed.

202. I
consider that there is a public interest consideration against
disclosure of the redacted information because there is some risk that
the Second and Third Respondents' business, commercial or financial
interests might be prejudiced if the information has not been released
already were disclosed.

203. As I have indicated above, it is my view that there is considerable doubt in regard to the extent of those risks.

204. In my view, the public interest considerations in favour of disclosure outweigh those against disclosure.

205. It
follows, in my view, that the determination should be set aside insofar
as it relates to the Agreements. In its place the decision should be
made that the redacted information in the Agreements is to be released
to the Applicant. That information should be released within 30 days of
the publication of this decision.

Judicial Member Montgomery in this 2007 Freedom of Information case had ruled that information about the royalty rate then more than 3 years old but still commercially valuable, was not exempt on the basis of evidence that another state had released
information regarding rates without any apparent impact on
commercial viability.

The Australian Financial Review reports today (paywall) that the NSW Supreme Court imposed a temporary order preventing publication of the content of ministerial briefing papers and memos prepared for cabinet about negotiations with car manufacturers concerning subsidies. The documents were mistakenly released by the Department of Industry, Innovation, Science, Research and Tertiary Education in a response to a Freedom of Information request.

That issue to one side, and noting Minister Combet's assurances that the information mistakenly released is very sensitive and that jobs and investment would be at risk if disclosed, what the AFR has been able to tell us suggests the department may have been gaming the system in this case.

It's a contrast to the picture painted by Australian Information Commissioner Professor John McMillan in recent speeches and articles. While Professor McMillan is right to point out that overall, the "development of open government over the past thirty years in
Australia — and over the past couple of years in particular — is an
enormous success story", the AFR throws some light on a dark corner. I'd be amazed if this is the only agency with one. (Update-I didn't know at the time about information emerging concerning the immigration department.)

Yesterday the AFR reported that most of the substantive information in the 39 documents the department intended to release had been redacted. "One described a visit by then Manufacturing Minister Kim Carr to Detroit in January to meet General Motors
and Ford. Every paragraph in the memo was blacked out, including who Senator
Carr met and what was said at a press conference." The titles of the 39 documents weren't disclosed until the internal review stage. Two were “Visit to Ford’s
Broadmeadows Manufacturing Facility” and “Toyota announcement on job
losses”.

Aaron Patrick details how the information intended to be withheld was neatly contained in red boxes in documents supplied. Some contained "stunning revelations. Parts were embarrassing. Other sections were mundane or contained information on the public record. One table I initially thought was interesting took me three minutes to locate on Google. It was published by the federal Treasury in 2010."

Patrick concludes that FOI exemptions were abused.

The AFR is considering lodging a complaint to the commissioner that the department
withheld information it was legally required to disclose.

Tuesday, September 25, 2012

The kerfuffle about the blunder by the Department of Industry in releasing documents claimed to be exempt about subsidies for the motor industry to the Australian Financial Review is now in the NSW Supreme Court with the government, supported by Ford and General Motors, seeking orders that would prevent publication, require the AFR to delete all electronic copies and hand over an existing hard copy to the court. While the court has powers and may exercise them, it reminds of this 2006 NSW ADT decision where in a similar although less high stakes case, neither the agency nor the tribunal had powers to haul released documents back-once they were gone, they were gone.

Monday, September 24, 2012

Shadow NSW minister for transport Penny Sharpe may have been the only politician in Australia to have said anything about the
International Day of Democracy and the Declaration on Parliamentary Openness when she spoke in NSW Parliament last week-text extracted below.While noting all sorts of things being done elsewhere to open parliament to the people, and the fact that the state parliaments have not been helpful to Open Australia (see this 2009 post on that), Ms Sharpe's only comment on things close to home was:

"Here in New South
Wales we can and we should do better."

Indeed.

For starters by publishing online details of payments to or on behalf of parliamentarians at present buried away in annual reports, travel, and the interests register, particularly gifts and secondary sources of income for those who have other jobs. Publishing on-line papers tabled in parliament following Queensland's lead should also be on the list. How about extending the GIPA act to cover the parliamentary departments in line with developments in Tasmania and the national capital? We could go on.... Hansard doesn't record any hear, hears when Ms Sharpe finished speaking.

Friday, September 21, 2012

Clover Moore, my local independent member of state parliament and Lord Mayor of Sydney (disclosure I've made donations over the years), has been forced to relinquish her parliamentary position after another resounding win in local government elections earlier in the month. O'Farrell government legislation bans state parliamentarians from holding local government office, but not from holding a second job as quite a few do. Moore leaves state parliament having made outstanding contributions on many fronts as outlined in her Valedictory Speech in Parliament (12.38pm) yesterday. The Index lists 775 Moore speeches, questions and responses in Parliament since 1991.(There were more-she was first elected in 1988.) Improved accountability and transparency, including significant freedom of information reform were always part of the agenda:

Monday, September 17, 2012

Privacy issues and developments have been such that for ages now they far exceed my ability to keep up with anything other than a few majors here and there. The Age today has the first instalment of a series designed to focus attention on the issues. As the lead-in states:

"Australians' privacy protections have been eroded more than in any other
country since the 9/11 attacks in the United States, experts warn."

More of the same may be on the way. Data retention rules for ISPs is one of a number of hot issues before the joint parliamentary committee on intelligence and security looking at potential reforms to national security legislation, to report by the end of the year.

Meanwhile the slow ponderous path to reform of existing information privacy law-seen as important in 2006 when the issue was referred to the Australian Law Reform Commission, in 2008 when the Commission reported, and in 2009 when the Government announced its first stage response, leaving for another day a whole range of equally significant issues-may be edging closer to action in the parliament. Two other parliamentary committees are inquiring into the Privacy Amendment (Enhancing Privacy Protection) Bill 2012 that would amend the Privacy Act 1988 . The House committee is due to report on 21 September. (Update: tabled here on 17th: in essence in response to a multitude of issues raised by industry and consumers, the committee recommended passage of the bill and that the Attorney General commit to a review of the main areas of concern within a year of commencement-that's a year from nine months after passage of the bill.) The reporting date for the Senate committee has been extended twice and is now 20 September. It's way beyond most mere mortals. Regulators, corporates, industry bodies and a few privacy advocates have been slugging it out through submissions and at hearings. In this supplementary submission the Australian Privacy Commissioner still has concerns that Australian entities won't remain accountable when they send personal information offshore, and among other points responds to criticisms in submissions and hearings of past and present Privacy Commissioners’ use of
investigation and determination powers.Of the many privacy concerns surfacing, interesting to note that drones aren't just a problem in war-zones or nearby (or for those of us who saw the Bourne Legacy, very handy in Alaska)-Australian Privacy Commissioner Pilgrim is concerned about the civilian drone revolution in Australia. And that's as the police start looking into their potential for crime fighting.

Friday, September 14, 2012

Ross Gittins a few months backpointed to examples of the way the government's spin doctors are turning the budget papers into an exercise in
media management with the result that those who read them in the hope of enlightenment are getting the
bum's rush.Stephen Bartos in the AFR this week, writing about the opaque assumptions that underlie Treasury modelling and forecasting, argued that more transparency could help in development of good policy and do something about that trust deficit. Treasury and Finance (the then minister signed it) need to dig out and further digest the meaning of the Declaration of Open Government of July 2010:

The Australian Government now declares that, in order to promote greater
participation in Australia’s democracy, it is committed to open
government based on a culture of engagement, built on better access to
and use of government held information..

Thursday, September 13, 2012

Still on the subject of our national and sub-national (when it comes to entitlements etc, don't start me!) parliaments, could they be more open and accountable? Could more be done to enhance citizen participation in the legislative process?

That conference is co-organised by the United Nations and the Inter-Parliamentary Union and "principally aimed at presiding officers and members of
parliament, secretaries general, parliamentary staff and officials, experts
from international organizations, civil society organizations and academics who work and deal with information and communication
technologies as instruments to improve and modernize parliamentary business and
citizens’ participation in public decision-making processes."

Attorney General Roxon
probably won't be there to further explore the idea that the
parliamentary departments shouldn't be subject to the Freedom of
Information Act. But Carol Mills Secretary, Department of Parliamentary Services in Canberra is the only Australian to make it onto the speaker's list. (Addition-presumably she won't dwell on the parliament's procedure for handwritten declarations of interests and gifts.)
Maybe we'll also have someone there from DFAT and/or a parliamentarian or two. Speaker Peter Slipper can't be all that busy. But civil society? Doubtful in the extreme.

The UN General Assembly, in resolution A/62/7 (2007) encouraged Governments to strengthen national programmes
devoted to the promotion and consolidation of democracy with 15 September each year nominated as a special day. The theme in 2012 is "democracy education -- essential for the long-term success of
democracy.... It is only with educated citizens
that a sustainable culture of democracy can emerge." Yes to that.

Tuesday, September 11, 2012

The House of Representatives last night spent close to an hour and a half debating a private member's motion that "calls on The Treasury and the Department of Finance and Deregulation to
release all costings of policy proposals that the Australian Greens
have formally submitted to the Government for analysis since the 2010
Federal Election." And it's not finished yet-debate was adjourned, but certain to go nowhere in the end.

The issue emerged in July when the Opposition sought access to these documents under the Freedom of information Act only to get a knockback because they were claimed to becabinet documents,
documents submitted or proposed to be submitted to cabinet, and prepared
for that dominant purpose. Hard to fathom then and now as was the claim the documents were deliberative documents. No light was thrown on this in parliamentary debate but the mover of the motion Jamie Briggs has sought review of the decision from the Australian Information Commissioner.

There was plenty of attempted points scoring and in all the argy-bargy, the Opposition managed to avoid a commitment to submitting its policies to the Parliamentary Budget Office-a body entirely exempt from the FOI act-prior to the election.

Monday, September 10, 2012

A reminder of the many exciting topics to be discussed (ahem), and top speakers (ahem, not the least, Session 11) at the National Information Law Conference in Canberra, 14-16 November 2012. Read all about it - sign up here. Download brochure

Friday, September 07, 2012

Also worth your time the George Winterton Lecture in Perth this week by my local Federal member Malcolm Turnbull entitled “Republican virtues – truth, leadership and responsibility.” It incudes a section on the urgent need for honesty and for steps to restore trust in political leadership. Some extracts:

Most Australians believe we need an honest, informed policy debate. Yet I
don‟t see many people who believe we have that. Instead, we all hear
again and again that Australians are ashamed of the parliament, that
they see it as nothing more than a forum for abuse, catcalling and spin....
Call me idealistic if you like, but we have a greater need than ever for
informed and honest debate and, yet, with the decline of journalism
less means to deliver it and hold to account those who seek to frustrate
it....
In case you think my call for a change of attitude and practice to truth
in politics is just idealism – let me make a practical political point.
It seems to me that we don’t simply have a financial deficit, we have a
deficit of trust. We can argue for hours which side and which
politicians,which journalists indeed, have contributed most to it. But
it affects all of us and all of our institutions.The politicians and
parties that can demonstrate they can be trusted, that they will not
insult the people with weasel words and spin, that they will not promise
more than they can deliver, that they will not dishonestly misrepresent
either their own or their opponents‟ policies – those politicians and
parties will, I submit to you, deserve and receive electoral success.

Before this speech I had sent him a link to my Polly perks, lobbying, probity, sunshine post

which refers to a number of reasons why pollies are held in low regard. I said I'd be happy to publish any comment he would like to make. The offer still stands.

The Closing Keynote Speech by NSW Attorney General Greg Smith at the Creating Open Government Conference in Sydney on 21 August, entitled "The value of freedom of information", was more philosophical, comprehensive and fulsome in support than you get from your average attorney general or most other ministers for that matter.

I don't think we've heard the likes from the senior ranks of the front bench in NSW since the then reforming premier Nathan Rees was saying in 2008-09: "Transparency and
accountability are the cornerstones of good government. The people of
New South Wales should be given as much information as possible about
the activities of the Government."

This for example from Attorney General Smith:

The ability to access information is hugely significant for a functioning democracy. It provides a basis for many democratic goods. It allows a platform from which every citizen can participate equally. It facilitates trust between citizens and government. It builds knowledge. It empowers people to make decisions.

And despite the fact it's been true for two years, a message that hasn't often been up there in ministerial lights:

The third value I want to highlight today is perhaps the most important – recognising the public’s right to know. In particular, freedom of information is placed ahead of certain political concerns. GIPA expressly forbids public servants from taking potential government embarrassment into account when deciding whether or not to release information. Decisions of public servants to release (or withhold) information are not subject to ministerial approval. It is an offence to deliberately make decisions in contravention of the legislation, or knowingly conceal, destroy or alter information, because this information is considered a public good. Destruction of public information is considered as serious today as the waste of taxpayer resources in any other sense. This follows a general trend in administrative law, such as the right to reasons behind government decisions in the federal Administrative Decisions (Judicial Review) Act. These developments stand for the principle that people have a right to know about government action, so they can respond to it as they see fit. The public interest comes first, and in most circumstances, the public interest favours the public’s right to know.

NSW public servants, particularly at the very senior level, probably can't recall being told by a minister that FOI is not only the law, it's good for you:

Freedom of information is not just good for citizens, it is good for governments. The possibility that information will be requested leads to a range of positive outcomes for government administration. Firstly, it improves efficiency. When records may be requested, there is a strong imperative to manage them more carefully, so that they can be quickly accessed if they are requested. Moreover, when individuals are able to access and correct their information, they enhance government’s understanding of their population, and the government’s ability to deliver services is boosted. The World Economic Forum has argued that the efficient use of personal data will become a major industry in the next century. They believe streamlined, effectively used personal information will be as valuable as oil. Governments should therefore view this new climate of open government as an exciting opportunity. Many jurisdictions which have introduced freedom of information legislation have found that records which are now better kept are able to be used to assess the impact of programs, share knowledge within departments and even to save money. They also have the benefit of ensuring that proper processes are followed. When government records are amenable to review, governments and their agencies are more likely to be compliant. As I mentioned earlier, GIPA also establishes criminal penalties for people seeking to interfere with the integrity of information in an attempt to prevent its disclosure. It is clear that GIPA should be understood as a resource, not just for the general public, but for the government. It can make their services better, more efficient, and more informed. This is a very significant benefit.

The only quibbles-I knew you were waiting-

the Attorney General along with the Premier overeggs the significance of Goal 31 of the State Plan NSW 2021, welcome as it is as a high profile commitment to improve government transparency. But one of two targets in Goal 31 is (emphasis added): "Full compliance with the mandatory proactive release requirements under the Government Information Public Access Act (GIPA)." Given these requirements are hardly earth shattering and have been mandatory since 2009, that's a pretty modest aim for 2021;

the Attorney General's acknowledgement of a new age "where people expect their government to interact with them in new ways. Information is not only freer, but easier to share and engage with" needs action at home in his department and at other NSW agencies where making a formal application under the GIPA act involves a process held over from another age entirely. Fill in a form, put it in an envelope with a cheque or money order ( no kidding) and wait till we're in touch doesn't sound new information age to me.

Australian Information Commissioner Professor John McMillan in The Australian (paywall) today responds to Barrister Tom Brennan's recent paper about the Freedom of Information external review model, suggesting Brennan takes a narrow but mistaken approach in assessing open government reforms solely on the number of contested disputes that are unresolved at the OAIC.

Professor McMillan makes some good points and I'm with him that broader measures tell the real tale. He provides some indicators of cultural change, proactive disclosure and administrative access, all important parts of the reform mix. And "(a)cross government there is an increase in FOI requests for policy
documents, lower FOI cost recovery, faster processing and more
consistent practice."(As an aside however, we are slow in all jurisdictions except Queensland in coming up with the measures and performance data for agencies that show better than the anecdotes, what progress has been made.)

Professor McMillan in my book is also on the money in advocating external review processes such as we have at federal level that provide for binding determinations as a better first step to the alternative of racing off to tribunals and courts, perhaps the unstated but understandable fora of choice for lawyers.

But Brennan is also right that time is of the essence for everyone caught up in these processes, so delay amounts to access denied in many instances.

Professor McMillan points out more than 500 of 950 review applications received since the scheme began in November 2010 have been resolved. Workload and resource constraints appear to be significant. However as noted here the KPIs for the review function are unambitious to say the least: 80% to be completed within six months. Even performance to match might see cause for concern.While delay at the OAIC was Brennan's main criticism, he took wider aim at the OAIC model, raising these issues that Professor McMillan has chosen to leave for another day or forum:

that the Commissioner’s guidelines function and policy
advisory role are incompatible
with the merits review function,

that the Commissioner's general principle to conclude a matter
without a hearing "is quite extraordinary conduct of an independent
merits review entity", and Brennan's clincher

that we may soon see some applicants seek to bypass the OAIC by
going to the courts for orders "in the nature of mandamus, or otherwise
by way of judicial review to directly review decisions of respondent
agencies."

Thursday, September 06, 2012

Four years since the explosion at the Varanus Island gas plant operated by Apache Northwest off the Western Australian coast that had drastic consequences for natural gas
supplies in WA, Apache has continued to argue in two jurisdictions against disclosure of documents under freedom of information laws

In the latest development, the Western Australian Court of Appeal upheld a decision to release to Lander
and Rogers Lawyers, documents relating to the company and its
facilities on the island where a gas pipeline ruptured causing the
explosion. Decisions in this case previously by the Information Commissioner and a judge in the Supreme Court had gone against Apache.

The WA cases are separate from proceedings earlier in the year at the federal level where the Freedom of Information Commissioner upheld, over objections by the
company, a decision by a Commonwealth agency to release documents to AFR journalist
Geoff Winestock. Winestock reported in April that that decision was being
appealed.

FOI related issues concerning access to documents that might throw light on what happened have been swirling around since the 2008 election campaign. The Government released an investigation report and the response from the Department Of Mines and Petroleum in
May 2012 having earlier discontinued a prosecution against Apache. Alcoa for one is suing Apache over the incident. And the FOIs have been rolling...

Tuesday, September 04, 2012

Glad to see some haven't lost it-or maybe don't laugh, she was serious.This suggestion from a reader for a prize winning photo on transparency and openness: the response to a request forthe number of Infringement Notices and Enforceable Undertakings issued by the Therapeutic Goods Administration: FOI 261-1011 document 1 (PDF 29 KB).

It's the 10th anniversary of Right to Know Day on 28 September, unfortunately not a biggy yet in this neck of the woods, with Queensland OIC one of the few to mark the occasion.

This year the FOI Advocates Network is running a photo contest open to members and non-members - anyone who can illustrate the right to information, transparency, accountability and openness through photography is welcome to participate. Entries close 12 September.

The winning photo will be used on the front cover of the international publication Right to Information World Advocacy Update to be launched on Right to Know Day this year. Photos submitted may also be exhibited at a later date at international transparency and anti-corruption forums.

The Jury will award three prizes, for a total of 1000 EUR, generously made available by the Open Society Institute. The prizes will be distributed as follows:

The Queensland Information Commissioner's annual report notes that at 30 June there were five appeals before QCAT by external review applicants in relation to decisions of the Information Commissioner. Under the RTI and IP acts an external review participant can appeal to the Queensland Civil and Administrative Tribunal (QCAT) against a decision of the Information Commissioner on a question of law. ( Around the country, it is basically the same system in WA; at the federal level, further merits review is available in the AAT where the applicant or the agency contends the decision of the Information Commissioner is wrong; there is no limitation in NSW on an applicant seeking further merits review in the ADT either bypassing the Information Commissioner or following an IC review- this is the only jurisdiction where a decision by the Information Commissioner is recommendatory not determinative.)

No applications for judicial review were made to the Supreme Court during 2011–12 under the Judicial Review Act 1991 (Qld).

Both decisions found that releasing the information, would not, on balance, be

contrary to the public interest and identified the following public interest factors which

significantly favoured disclosure:

promoting open discussion of public affairs and enhancing government accountability—disclosure of the information was considered to contribute to agreater understanding of the way in which the local council/regulatory agency performs the significant regulatory functions conferred on it; and

contributing to safe, informed and competitive markets—competitive marketsrequire multiple participants and informed consumers and for this reason, there is a public interest in disclosing the information to consumers.

The third highlighted decision, Applicant-University of Queensland was the first resulting in a vexatious applicant declaration. Under s.114 of the RTI Act and s.127 of the IP Act, the Information Commissioner may declare that a person is a vexatious applicant if satisfied that the person has repeatedly engaged in access actions and the repeated engagement involves an abuse of process for an access action. A declaration can only be made if the respondent is given an opportunity to make written or oral submissions.

The University applied for an individual to be declared a vexatious applicant. The Commissioner granted the declaration with the condition that the individual is prohibited from making any further access applications to the University concerning any document about him brought into existence prior to the date of the declaration.

The Commissioner considered that the making of 65 access applications to the University including ten in a 12 month period, constituted the applicant repeatedly engaged in access actions, and that the following features of the repeated engagement in access actions amounted to an abuse of process:

multiple and continuing applications over a long period of time, sometimes for the same documents,

unsubstantiated allegations against, and vilification of, the applicant’s staff abuse of access rights—using documents obtained under the IP Act to purportedly substantiate baseless allegations posted on the respondent’s website and to continue long standing and ongoing harassment of the applicant’s staff,

unreasonable interference with the applicant’s operations; and waste of public resources.

Monday, September 03, 2012

The Office of Information Commissioner Queensland Annual Report 2011-2012 outlines another year of good results. Information commissioners around the country are struggling with demand, so the OIC performance in taking in 404 review applications and finalising 457 against a target of 300 was impressive. Timeliness suffered as a result of an increase in demand and a focus on processing a backlog of older files. Still, the median number of calendar days for an external review to be finalised was 90 days, equal to the performance target. As at 30 June 2012, two reviews more than 12 months old remained open (1.8% of open reviews at the end of the reporting period). The percentage of reviews finalised informally was 88% and the number of applications on hand at the end of the financial year reduced from 168 to 113. The OIC made 56 written decisions, 39 under the Right to information Act and 17 under the Information Privacy Act.

There aren't too many up for this, so full credit: surveys showed 71% of applicants were satisfied overall with the conduct of their review application and 98% of agencies were satisfied with the review service provided.

Information Commissioner Kinross signed off the report before leaving on 9 August and she and the staff (34) deserve credit for a job well done. Two big picture observations from her introductory remarks get a 'hear, hear' here:

The Independent FOI Review Panel also found that one of the key barriers to successful FOI implementation was the closed culture of the public sector. The culture of the public sector remains a key challenge. A compliance approach where open government performance measures are included in chief executive officer and senior executive staff contracts is necessary if the culture is to be changed over time.
OIC has a commitment to look for answers to the questions of how public sector agencies can achieve better transparency. There is objective evidence that links transparency with improved public sector productivity, performance, policy implementation, compliance and enforcement outcomes, innovation, and integrity. The fact that it has not yet emerged as a distinct field in public administration speaks to the strength of the culture of secrecy and the risk adverse nature of the public sector. By packaging this evidence for executives, and developing resources and tools for it, we hope public sector managers will come to view transparency as a necessary part of their tool kit, rather than something to be avoided. There is no doubt that public sector information can be used strategically to assist executives achieve the goals of effectiveness, efficiency, economy and integrity in all aspects of government business. To this effect we have launched the Transparency Series of occasional papers in partnership with ANZSOG.

On the privacy side of the shop, two complaints were on hand at the beginning of the 2011–12 financial year and 61 complaints were received during the year. Fifty-seven were finalised during the year. OIC again exceeded its target of finalising complaints within 90 days, achieving a median time to finalise a complaint of four days(!!). The number of complaints received almost doubled compared to the 2010–11 financial year.

From Saturday's Sydney Morning Herald further instalment about the scribbled system of disclosure of parliamentarians' interests and extras on the side:

An Australian National University professor who has written
extensively on accountability, Richard Mulgan, says transparency is
vital. "There is a very strong court of public opinion when it comes to
parliamentarians," he says. "This is where transparency seems to me to
be key. Politicians do live in a glass house and it's harder for them to
get away with things."But the present regime of disclosures presents many hurdles
to accountability - not least because the forms are scratched in
handwriting on unsearchable pages that must be examined individually. In the words of John Uhr, a professor of politics at ANU, the
present system of disclosures "has still got a kind of 'club rule'
about it, where the information is registered with the club official for
club purposes"....Australia's parliamentarians are not subject to many of the checks
and balances that govern behaviour of parliamentarians in other Western
democracies...Most politicians who accept gifts and lavish trips don't have
to meet standards expected of federal public servants, whose behaviour
must comply with a code of conduct.... The requirements for politicians to reveal duchessing and the like are
based on a list of necessary disclosures set down in 1984 for members
of the House of Representatives and 1994 for members of the Senate, and
hardly changed since. The lists of disclosure are often obscure, poorly
framed and inconsistent between the two houses... Confidence in the overall state of disclosures - and their ability to
provide the "glass house" envisaged by Professor Mulgan - is not helped
by omissions, opaque or illegible reporting and silliness.

Reminder: Prime Minister Gillard on forming government in August 2010 :

So, let's draw back the curtains and let the sun shine in; let our parliament be more open than it ever was before.

Reminder: the Senate Finance and Public Administration Committee in March 2012 concluded everything was rosy with how the current regulation of lobbyists and lobbying in the form of a registration requirement
is framed and works in practice. No recommendations for improvement according to the majority. The Greens Senator Lee Rhiannon in a dissenting report strongly disagreed and made eight recommendations for major change.

(Update: Senator Rhiannon reiterated the call last week for publication of "full details of MP’s interests, entitlements and perks online
rather than unsearchable formats and paper records gathering dust in
Canberra.")

Reminder: a review of the system of parliamentarians entitlements commenced in September 2009 with the appointment of the Belcher committee, following critical findings about accountability and transparency by the Auditor General. The Committee Report came into the public domain when tabled in Parliament in March 2011, close to a year after it had been
completed and handed to the government. "We are committed to
reform, openness and transparency to ensure that we maintain the trust
and confidence of the Australian people,” Senator Ludwig, the
minister then responsible had said at the
time the Committee was appointed.

Some improvements have been made since 2009 in
public reporting on payments made by the Department of Finance
separately from the Belcher review process, but that's just part of the
picture- and the parliamentary departments are subject to the FOI act at least for the moment. Minister Gray in March 2011in announcing that two (of 16) Belcher committee recommendations had been acted upon, said the remaining recommendations had been referred to the
Remuneration Tribunal, although some have nothing to do with that body. The minister said nothing then or since about when the tribunal should complete its work or when if at all the government will
act on the recommendations.Reminder: Speaker Peter Slipper and President of the Senate Senator John Hogg have said nothing on any of these issues.Reminder: members of Federal (and state)
parliament were rated very high or high
for honesty and ethics in the Roy Morgan Survey of Professionals May 2012 by 10% of those surveyed- just ahead of the last three of 30 categories,
real estate agents, advertising people and used car salesmen. Ah, you've got to love 'em.

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About Me

Peter Timmins is an Australian lawyer and consultant who works on FOI and privacy protection issues in Sydney, NSW. He has Arts and Laws (Honours) degrees
from the University of Sydney, and has been involved in the FOI field for 25 years.Peter is an experienced public speaker and commentator. See In the News and Testimonials, and Career Summary for more details on background and experience.